A party, without whose absence a suit cannot be proceeded with and a final and binding decree cannot be passed, is called “necessary party”.

 A party, without whose absence a suit cannot be proceeded with and a final and binding decree cannot be passed, is called “necessary party”. A person whose presence is necessary for the adjudication of all issues and matters involved in the suit and whose interest in or against the relief or the subject matter of the suit may be marginal, nominal, limited or none, is a “proper party”. A person against whom no relief is asked for could hardly be a necessary party but may be a proper party. Another difference between the effect of non-impleadment of a necessary or a proper party is that a suit in which a necessary party is not impleaded, is bad while a suit in which a proper party is not impleaded, is not bad. In the case in hand, if petitioner succeeds in getting a decree of specific performance, it would not prejudice ownership rights of respondent No.4. Furthermore, there is no legal hurdle in proceeding with the suit without impleading respondent No.4 and his presence is also not necessary to settle points of controversy between petitioner and respondent No.3, thus, he is neither necessary nor proper party to the suit.

It is settled law that a vendee purchasing property from a co-sharer, who owns an undivided joint Khata, is clothed with the same rights in the property, no more or no less than that of the vendor. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to the vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of the transferor qua ownership rights in the joint property, to the extent of the area purchased, provided that the area in question does not exceed the share which the transferor owns in the whole property.

Alienation of specific portion to the vendee would only entitle the latter to retain ostensible possession till such time as an actual legal partition by metes and bounds takes place between the cosharers.

W.P. No.30112 of 2021

Muhammad Yousaf Versus Additional District Judge, Fereozewala, District Sheikhupura & others